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Nasser v. Whitepages, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

July 2, 2014

MICHAEL J. NASSER, SR., Plaintiff,
v.
WHITEPAGES, INC., Defendant.

MEMORANDUM OPINION

MICHAEL F. URBANSKI, District Judge.

This matter is before the court on (1) a report and recommendation and (2) an order, both issued on April 1, 2014, by the Honorable Joel C. Hoppe, United States Magistrate Judge, Dkt. Nos. 73, 72, as well as (3) a report and recommendation issued by Judge Hoppe on April 30. Dkt. No. 84. Pro se Plaintiff Michael J. Nasser ("Nasser") has filed a series of pleadings, Dkt. Nos. 79, 85, 86, which the court will construe as objections to both reports and recommendations and an appeal of Judge Hoppe's order. For the reasons set forth herein, the court will overrule both Nasser's objections and deny his appeal of the order.

I. Factual and Procedural Background

Nasser originally filed this action in state court over four years ago. Since then this case has wound its way through both state and federal court, and has been the subject of numerous pleadings and opinions. Nasser's most recent pleadings come seven months after summary judgment was granted to the defendant.

The relevant facts begin just under five years ago, in October 2009. Nasser began receiving calls from a large number of customers trying to contact Comcast, the cable provider for the Winchester, Virginia area. Dkt. No. 1-1, at 2. Understandably annoyed, Nasser investigated these calls and soon discovered that Defendant WhitePages, Inc. ("WhitePages") listed his number after entries for "Comcast Phone of Virginia" and "Comcast Phont of Virginia" on its website, whitepages.com. Id . This listing was based on information provided to WhitePages by Verizon Virginia, Inc. ("Verizon"). Dkt. No. 10, at 12 n.1.

Nasser called WhitePages on October 28, 2009, and asked for the listing to be removed. During that call a WhitePages representative allegedly told him that she had processed the requested removals. Id . at 3-4. However, the calls continued, and WhitePages maintained the erroneous listing on its website until February 17, 2011, more than a year after Nasser first contacted WhitePages to alert it of the problem. Id . at 5.

On April 21, 2010, Nasser sued WhitePages and Verizon in state court for nuisance, intentional infliction of emotional distress, and negligent infliction of emotional distress. Dkt. No. 51, at 2. Nasser settled his nuisance claim against Verizon after the court dismissed his other two claims. He non-suited his claims against WhitePages on February 8, 2012. Id.

Nasser re-filed his claims against WhitePages in state court on August 6, 2012. Id . On September 7, WhitePages removed the case to federal court. Dkt. No. 1. On September 27, Nasser moved for default judgment, arguing that service was effectuated when local counsel for WhitePages acquired the complaint on August 13, 2012. Dkt. No. 6. By order dated October 1, 2012, the court referred all non-dispositive motions to United States Magistrate Judge B. Waugh Crigler to hear and determine pursuant to 28 U.S.C. § 636(b)(1)(A), and all dispositive motions to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Dkt. No. 8. The next day, WhitePages moved to dismiss for failure to state a claim. Dkt. No. 9. On October 5, Nasser moved for entry of default. Dkt. No. 15. On December 20, Judge Crigler issued a report and recommendation, recommending that Nasser's motion for default be denied, and that WhitePages' motion to dismiss be granted. Dkt. No. 26. On January 14, 2013, with the matter appearing to be nearing its conclusion, the court adopted Judge Crigler's Report and Recommendation in its entirety. Dkt. No. 27. On January 22, however, Nasser filed a motion to set aside the court's dismissal order, representing that he did not receive the magistrate judge's report and recommendation, and that he therefore did not have an opportunity to file any written objections. Dkt. No. 28. The court granted this motion on January 24. Dkt. No. 29.

On May 23, 2013, the court issued an order, accompanied by a memorandum opinion, denying Nasser's motion for default judgment and motion for entry of default, and directing that the parties engage in limited discovery on the issue of whether Nasser's claims against WhitePages were barred by the Communications Decency Act, 47 U.S.C. § 230. Dkt. No. 33. After this discovery, both parties moved for summary judgment. Dkt. Nos. 38, 43. On November 22, 2013, the court denied Nasser's motion and granted WhitePages' motion, finding that WhitePages was entitled to immunity under § 230 and that Nasser could not rely on promissory estoppel because Virginia law does not recognize it as a cause of action. Dkt. No. 52. The court dismissed Nasser's suit and struck it from the active docket of the court. On December 10, Nasser, unbowed, filed a "motion for reconsideration" of the court's summary judgment order. Dkt. No. 53. The court construed Nasser's motion as a motion to alter or amend the judgment under Rule 59(e), and denied the motion on January 7, 2014. Dkt. Nos. 54, 55.

The same day, WhitePages filed its bill of costs. Dkt. No. 56. On January 16, 2014, Nasser moved to dismiss the bill of costs. Dkt. No. 58. On January 30, WhitePages filed a motion seeking entry of a pre-filing injunction, or, alternatively, monetary sanctions against Nasser. Dkt. No. 59. In this motion, WhitePages requested that the court enjoin Nasser from filing any further papers in this matter without leave of the court "upon demonstration that any such pleading is being made without improper purpose, is in compliance with Rule 11 of the Federal Rules of Civil Procedure, and can survive a challenge under Rule 12 of the Federal Rules of Civil Procedure (if applicable)." Id . at 2. In the alternative, WhitePages requested that the court "impose monetary sanctions against Nasser in order to deter [him] from further abuse of the legal process." Id.

On February 18, 2014, Nasser filed his response to WhitePages' sanctions motion, as well as his own motion seeking to recover costs in this matter. Dkt. Nos. 64, 65. Later that day, WhitePages filed its response in opposition to Nasser's motion. Dkt. No. 66. On March 12, Nasser filed a motion seeking to "dismiss" WhitePages' sanctions motion and "quash" the exhibits filed along with it. Dkt. Nos. 68, 69.

By order dated February 21, 2014, the court referred all non-dispositive motions to United States Magistrate Judge Joel C. Hoppe[1] to hear and determine pursuant to 28 U.S.C. § 636(b)(1)(A), and all dispositive motions to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(l)(B). Dkt. No. 67. On March 17, 2014, Nasser next filed a motion requesting the court "to refer this matter to the Supreme Court of Virginia" to answer three proposed questions that Nasser argued were relevant to the disposition of this already-closed case. Dkt. No. 70. Judge Hoppe subsequently issued the two reports and recommendations and the order that are the subject of Nasser's most recent pleadings. The court will address each in turn.

Judge Hoppe's April 1, 2014 Order. Dkt. No. 72.

Judge Hoppe denied WhitePages' motion for a pre-filing injunction, or, alternatively, monetary sanctions. Accordingly, he also denied as moot Nasser's motion to "dismiss" WhitePages' sanctions motion and "quash" the supporting materials. Finally, the order admonished ...


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